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Copy of UK KASA Law Symposium

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on 7 June 2013

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Transcript of Copy of UK KASA Law Symposium

The Investigation KRS 161.120(3) states “a finding or action by a school superintendent or tribunal does not create a presumption of a violation or lack of a violation . . . “ Administrative Hearing Charges are drafted. See KRS 13B.050. 13B Hearing Ethical Requirements Misconduct under KRS 161.120:
a)Convictions for felonies, certain misdemeanors, and any misdemeanor involving a student;
b)Having sexual contact with a student or a minor;
c)Committing any act that constitutes fraudulent, corrupt, dishonest, or immoral conduct;
d)Demonstrating willful or careless disregard for the health, welfare, or safety of others;
e)Physical or mental incapacity that prevents the educator from performing duties with reasonable skill, competence, or safety;
f)Possessing, using, or being under the influence of alcohol, which impairs the performance of duties;
g)Unlawfully possessing or unlawfully using a drug during the performance of duties;
h)Incompetency or neglect of duty;
i)Falsifying information in an effort to obtain or renew a certificate;
j)Failing to report misconduct;
k)Failing to comply with an order of the EPSB;
l)Violating any state statute relating to schools or the teaching profession;
m)Violating the Professional Code of Ethics;
n)Violating any administrative regulation promulgated by the EPSB or KDE; or
o)Discipline from another licensing or certifying jurisdiction on grounds that constitute a violation in Kentucky Final Board Review Respondent accepts Agreed Order. The Education Professional Standards Board Disciplinary Process The Complaint The EPSB receives complaints from a variety of sources including parents, KEA, other state agencies like OEA, CHFS, and KDE, as well as from media postings. However, the largest number of cases are initiated from superintendent reports. Opening a Case EPSB Division of Legal Services’ Staff reviews all complaints and reports received. If the complaint or report contains credible allegations that if proven true would constitute a violation of KRS 161.120 or the Code of Ethics has occurred, a disciplinary case is initiated against the educator. A superintendent has the duty to report in writing to the EPSB any certified school employee in the superintendent’s district:
1)Whose contract is terminated or not renewed, for cause except failure to meet local standards for quality of teaching performance prior to the employee gaining tenure;
2)Who resigns from, or otherwise leaves, a position under threat of contract termination, or nonrenewal, for cause;
3)Who is convicted in a criminal prosecution; or
4)Who otherwise may have engaged in any actions or conduct while employed in the school district that might reasonably be expected to warrant consideration for action against the certificate. An educator is immediately notified when a disciplinary case is opened against him or her and given thirty (30) days from the day of receipt to respond to the allegations in the initial complaint or report. Upon receipt of the rebuttal or after 30 days, which ever comes first, the case is prepared for review by the EPSB at its next regularly scheduled board meeting Initial Board Review The EPSB may make the following determination after the initial review:
Defer for Training;
Admonish; or
Refer to full investigation and potential hearing. DISMISS
The dismissal may not be based upon the merits of the case, but rather some other aspect, such as weak facts, incomplete reporting, lack of cooperation from witnesses, etc.; therefore, subsequent action on this complaint is not prohibited.
KRS 161.120(9) allows the Board to “reconsider, modify, or reverse its decision on any disciplinary action.’ DEFER FOR TRAINING
The evidence presented to the Board indicates that the Respondent would benefit from remedial training. The Board shall defer consideration of this case in order to offer the Respondent an opportunity to complete the suggested training. If the Respondent provides written proof to the Board that he or she has successfully completed the recommended training, the Board shall dismiss the case. ADMONISHMENT
KRS 161.120(4) allows the Board to issue a written admonishment “if the Board determines, based on the evidence, that a violation has occurred that is not a serious nature.”
If an admonishment is issued, the educator has a right to a hearing. Refer to Hearing
The evidence, if true, would indicate that punitive action should be taken against the certificate. Legal staff shall further investigate the allegations and proceed toward an administrative hearing in accordance with KRS 13B. Case assigned to an EPSB attorney. Attorney investigates initial complaint and any other matters that come to light during the investigation Agreed Order is drafted and sent to Respondent for review. Negotiation occurs. Parties enter into an Agreed Order for Board review. Agreed Order is prepared for the Board. Board rejects Agreed Order. Board accepts Agreed Order Hearing Officer Assigned. See qualifications in KRS 13B.040. Prehearing Discovery/Conference(s). See KRS.13B.070. Hearing held. See KRS.13B.08030. Transcripts are completed within 30 days. Hearing Officer files Recommended Order within 60 days of completion of transcript. See KRS.13B.110. Each party has 15 days to file Exceptions and case is prepared for Board review.See KRS 13B.11090. EPSB may accept, modify , or reject Recommended Order. Board issues Final Order. See KRS 13B.120 Respondent may appeal decision to the Franklin Circuit Court. See KRS 13B.140. Professional Code of Ethics for Kentucky Certified School Personnel
1. Shall provide students with professional education services in a nondiscriminatory manner and in consonance with accepted best practice known to the educator.
2. Shall respect the constitutional rights of all students.
3. Shall take reasonable measures to protect the health, safety, and emotional well-being of students.
4. Shall not use professional relationships or authority with students for personal advantage.
5. Shall keep in confidence information about students which has been obtained in the course of professional service, unless disclosure serves professional purposes or is required by law.
6. Shall not knowingly make false or malicious statements about students or colleagues.
7. Shall refrain from subjecting students to embarrassment or disparagement.
8. Shall not engage in any sexually related behavior with a student with or without consent, but shall maintain a professional approach with students. Sexually related behavior shall include such behaviors as sexual jokes; sexual remarks; sexual kidding or teasing; sexual innuendo; pressure for dates or sexual favors; inappropriate physical touching, kissing, grabbing; rape; threats of physical harm; and sexual assault. Professional Code of Ethics for Kentucky Certified School Personnel
1. Shall make reasonable effort to communicate to parents information which should be revealed in the interest of the student.
2. Shall endeavor to understand community cultures and diverse home environments of students.
3. Shall not knowingly distort or misrepresent facts concerning educational issues.
4. Shall distinguish between personal views and the views of the employing educational agency.
5. Shall not interfere in the exercise of political and citizenship rights and responsibilities of others.
6. Shall not use institutional privileges for private gain, for the promotion of political candidates, or for partisan political activities.
7. Shall not accept gratuities, gifts, or favors that might impair or appear to impair professional judgment, and shall not offer any of these to obtain special advantage. Professional Code of Ethics for Kentucky Certified School Personnel
1. Shall exemplify behaviors which maintain the dignity and integrity of the profession.
2. Shall accord just and equitable treatment to all members of the profession in the exercise of their professional rights and responsibilities.
3. Shall keep in confidence information acquired about colleagues in the course of employment, unless disclosure serves professional purposes or is required by law.
4. Shall not use coercive means or give special treatment in order to influence professional decisions.
5. Shall apply for, accept, offer or assign a position or responsibility only on the basis of professional preparation and legal qualifications.
6. Shall not knowingly falsify or misrepresent records of facts relating to the educator’s own qualifications or those of other professionals. File a Rebuttal
Best rebuttals:
Provide Board with mitigation
Offer exculpatory evidence
Say nothing and beg for mercy. Check the EPSB's website, www.epsb.ky.gov, for the board meeting schedule. Rebuttals must be in the office 3 weeks prior to the meeting date to be prepared for the next scheduled meeting. If a superintendent does not report, his or her certificate will be sanctioned. Most complaints are sent to the local school superintendent for more information or further investigation. The EPSB attorneys are more willing to negotiate if there is an actual give and take. The ultimate burden of persuasion in all in all administrative hearings is met by a preponderance of evidence in record. KRS 13B.090(7) Anyone can file a complaint by sending a letter to the EPSB detailing the allegations of misconduct and identifying the educator or educators and identifying the school and school district. This is an voluntary option. If the educator does not want to complete the training, the case is returned to the board for further review. The board may issue a written admonishment to the certificate holder if the board determines, based on the evidence, that a violation has occurred that is not of a serious nature. A copy of the written admonishment shall be placed in the official file of the certificate holder. The certificate holder may respond in writing to the admonishment within thirty (30) days of receipt and have that response placed in his official certification file. Alternatively, the certificate holder may file a request for a hearing with the board within thirty (30) days of receipt of the admonishment. Upon receipt of a request for a hearing, the board shall set aside the written admonishment and set the matter for hearing pursuant to the provisions of KRS Chapter 13B. KRS 161.120(4) Information in the rebuttal is reviewed and verified during the attorney's investigation. Other information can be submitted to the attorney during this phase by the respondent or counsel. Agreed Order is not final until the order is accepted by the Board. Executed Agreed Order must be recieved at EPSB by noon on the Wednesday before a Board meeting. "The Board has expertise in this area, and a statutory duty to adopt and enforce standards of professionalism for teachers. Courts should not second guess the action of the Board unless there is a clear abuse of discretion." Young v. EPSB, Franklin Ciricuit Court 09-CI-1127, Memorandum Opinion and Judgment by Judge Shepherd, 4/8/2010. Why Am I Getting a Letter from the EPSB? File Exceptions!
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